CLA-2 CO:R:C:G 087980 JMH
District Director
U.S. Customs Service
Patrick V. McNamara Building Suite 200
477 Michigan Ave.
Detroit, MI 48266
RE: Protests 3801-9-001450 and 3801-9-001451; Headquarters
Ruling Letter 085939; Application for Further Review not
made; jack handles
Dear Sir:
A request has been made for our reconsideration of
Headquarters Ruling Letter 085939 ("HQ 085939"), dated June 18,
1990, which concerned Protests 3801-9-001450 and 3801-9-001451.
Our response follows.
FACTS:
On March 21, 1989 Protests 3801-9-001450 and 3801-9-001451
were filed at your port concerning the classification of certain
automobile jack handles. The protests were timely filed for
their subject entries. Neither protest contained an Application
for Further Review. On May 17, 1989 an additional submission was
filed by the protestant. This submission included a request that
the protest be sent forward for further review by Headquarters.
The May 17, 1989 request for further review, although
occurring more than 90 days after all but one entry was
liquidated, was treated by your office as a permissible
Application for Further Review for all the entries. This of
course was improper because 19 U.S.C. 1515 requires that
requests for further review must be filed within the time limit
prescribed in 19 U.S.C. 1514.
On August 17, 1989 your office recommended that the request
for further review be approved and that the protest be denied.
On September 6, 1989 the request for further review was
approved. The protests were forwarded to Headquarters on
September 15, 1989 with a recommendation that they be denied.
-2-
Headquarters failed to take note of the fact that the
protests were erroneously forwarded. Thus, we considered the
matter which resulted in the decision of HQ 085939. This ruling
concurred with the importer that the jack handles should be
classified in subheading 8425.49.00, Harmonized Tariff Schedule
of the United States Annotated ("HTSUSA"). However, HQ 085939
denied the protest on all but one entry. The protests were
deemed to be untimely filed because the request for further
review was made over 90 days after all but the one entry were
liquidated.
ISSUE:
Whether the protests for the entries liquidated more than 90
days prior to the importer's request for further review were
properly denied in HQ 085939.
LAW AND ANALYSIS:
Customs Regulations provide that a protesting party may seek
further review of a protest, but that such a request must be
filed within 90 days from the date of liquidation or the date of
the decision which is being protested. Customs Regulations
174.23, 174.12(e), 19 C.F.R. 174.23, 174.12(e). The regulations
allow that a protesting party may seek further review of a
protest in lieu of review by the District Director by filing an
application for further review. Customs Regulation 174.23. An
application for further review may be made by checking box number
seven on the protest form, Customs Form 19. Such an application
requires that the District Director forward the protest to
Headquarters if the District Director would deny the protest in
whole or in part.
Additionally, the District Director may obtain guidance or
advice from Headquarters by the internal advice process. Customs
Regulation 177.11(a), 19 C.F.R. 177.11(a). Customs Service field
offices may request internal advice from Headquarters at any
time, whether the transaction in question be prospective,
current or completed.
It is evident from the record that the District Director
believed that the protests in question should be denied in full.
The District Director treated the protests as if an application
for further review had been made and forwarded the protests to
headquarters. However, box number seven on the protests was not
checked. A proper application for further review was never made
regarding the subject protests. The protests should not have
been forwarded to Headquarters.
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It appears that the port was unsure of the correct
classification for the jack handles. The District Director had
the authority under the regulations to request internal advice
from Headquarters concerning the correct classification. There
was no authority under the Customs Regulations for the District
Director to send protests to Headquarters for further review when
the protestant had not applied for such review.
Since the Customs Regulations do not give this office
jurisdiction to decide protests lacking applications for further
review, HQ 085939 should not have been issued. HQ 085939 is
revoked as to the determination of the disposition of the
protests. However, we affirm the classification of the jack
handles in subheading 8425.49.00, HTSUSA.
HOLDING:
When an application for further review of a protest has not
been made, the regulations do not give the District Director
authority to forward the protest to Headquarters for
disposition. If an issue arises in a protest upon which the
field office needs advice or guidance, then such information may
be obtained through the internal advice process.
Protests 3801-9-001450 and 3801-9-001451 were forwarded to
Headquarters for further review after the time for such action
had expired. Headquarters did not have the authority to resolve
the protests as occurred in HQ 085939. HQ 085939 is revoked as
to the disposition of the protests. However, the classification
of the subject jack handles in subheading 8425.49.00, HTSUSA, is
affirmed. You should treat the two protests accordingly.
Sincerely,
John Durant, Director
Commercial Rulings Division